Hasman

The action is to recover a balance claimed due upon a promissory note executed by defendants and payable to plaintiff. The case' was tried without a jury and judgment going for the plaintiff the defendants prosecute this appeal.

The sole point involved is the statute of limitations. It is claimed that the action is barred under the provisions of section 337 of the Code of Civil Procedure, limiting the time within which an action may be commenced upon any contract, obligation or liability founded upon an instrument in writing.

The date of the promissory note in question is August 1, 1923, and the term of the note is three years, making the same due on August 1, 1926. The present action was commenced on December 5, 1930.

The chronology would indicate the limitation claimed. However, there was a clause in the note which causes the controversy. The note provides: “If this note is not paid at maturity it is hereby renewed from year to year, at the option of the holder, until paid, and during such year the makers thereof shall not have the right to pay the same.”

It is conceded that the note was not paid at maturity and the finding of the trial court as to renewal is in the…